Lloyd v. Farrell

• Decision Date: 22 June 1864
• Citation: 48 Pa. 73
• Parties: Lloyd <I>versus</I> Farrell.
• Court: Pennsylvania Supreme Court

48 Pa. 73

Lloyd versus Farrell.

Supreme Court of Pennsylvania.

June 22, 1864.

ERROR to the Common Pleas of Blair county.

COPYRIGHT MATERIAL OMITTED

Samuel S. Blair, for plaintiff in error

Hall & Neff, with whom was John Scott, for defendant.

The opinion of the court was delivered, June 22d 1864, by STRONG, J.

That the title to the land, for the purchase-money of which the bond was given, has failed to the extent of two third parts thereof, is beyond controversy. The evidence given at the trial in the court below shows it, and the court so instructed the jury. The plaintiff therefore was not entitled to recover, unless the defendant had agreed to take the risk of a defective title upon himself. If he did, then, what he bargained for was not a good title, but such a title as Thomas Farrell gave him, and there has been no failure of consideration.

It was upon this question that the case turned in the court below, and the errors assigned relate mainly to the instruction given to the jury respecting it. The land had belonged to Peter Collins and James Ross. On the 7th of October 1841 they sold it by articles of agreement to Barnabas Farrell, the father of the plaintiff, for the sum of $375, of which he paid $160, the first instalment, in full, and $8 on account of the second instalment. Shortly afterwards he died leaving three children, of whom the plaintiff Thomas Farrell was one. After his death his son Thomas paid the remainder of the purchase-money, and took a deed to himself from Collins and Ross, giving to them a bond conditioned upon his procurement of a release to them by his two sisters. He afterwards purchased a tax title under a sale made in 1846. Having thus a perfect legal title, subject however to a trust as to two undivided third parts for his sisters, in May 1854 he entered into an article of agreement, by which he covenanted to "well and sufficiently grant, convey, and assure unto Gilbert Lloyd (the defendant), his heirs and assigns, in fee simple, clear of all encumbrances, all the tract of land, in consideration of which the vendee covenanted to pay the sum of $6000 in instalments, as follows: $1000 on the 1st of July 1854, $2000 on the 1st day of July 1855, $2000 on the 1st day of July 1856, and $1000 on the 1st day of July 1857, the payments to be secured by bond and mortgage. On the 1st day of July 1854, in pursuance of this article, Thomas Farrell conveyed the land to the defendant, in fee simple, describing it as the same as that which had belonged to Peter Collins and James Ross, and which they had conveyed as above described. The deed contained only a covenant of special warranty against the grantor, his heirs and assigns, in addition to the covenant implied in the words "grant, bargain, and sell." On the day of the date of the deed, Lloyd gave his bonds for the unpaid purchase-money, of which that now in litigation is one.

There is nothing either in the agreement or in the deed to show that the purchaser undertook any risk of title, or that he bargained for anything less than a perfect title. The contrary is expressly declared in the article of agreement, and such is the legal effect of the deed. Nor is it pretended that he had any knowledge of defect of title in Thomas Farrell his grantor. He was not informed of the trust in favour of the grantor's sisters, nor of anything that should have put him upon inquiry. He did not take a deed for the right, title, and interest of his grantor, but a deed for the land itself, with all the covenants to which he was entitled as a purchaser of a perfect title. It is true the deed contains no covenant of general warranty against the world, but the purchaser of a perfect right is not entitled to anything more than a covenant against the acts of the grantor and his heirs — that is a covenant of special warranty: Withers v. Baird, 7 Watts 229; Espy v. Anderson, 2 Harris 312; Cadwalader v. Tryon, 1 Wright 322.

To show, however, that his conveyance was of no more than his own right, and that the defendant bought at his own risk, the plaintiff called a witness, who testified that he was present at the signing of the agreement and at the delivery of the deed; that it was the understanding that Mr. Lloyd was to take whatever title Farrell had, at his own risk; that he did not undertake to give the language of the parties; that the conversation was just before the signing of the...